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Madhu Gupta Age 61 years, Occ: Housewife Residing at 50 , !heeta" #A$ %ing !wa&i !a&arth 'agar, Mu&+ai, 00 050s( 1ra2in 3u&ar Gupta Age 65 years, Retired Off( )our *unga"ows Andheri %est

] ] ] ] ]

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] ] ] ] ] ]((Respondent .Ori( 1etitioner/
WITH CIVIL APPLICATION NO. 13 OF 2013 IN F.C.A.NO. 144 OF 2013 IN M.J.PETITION NO. A-382 OF 2008 1 of 15
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Residing at 1105, 11th f"oor 1ancha2ati 4(H(!( 5td( Off 6ari Road, 0erso2a

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Andheri .%est/, Mu&+ai, 00 061

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](( Appe""ant .Ori( Respondent/

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FAMILY COURT APPEAL NO. 144 OF 2013 IN M.J.PETITION NO. A - 382 OF 2008

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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Madhu Gupta Age 61 years, Occ: Housewife Residing at 50 , !heeta" #A$ %ing !wa&i !a&arth 'agar, Off( )our *unga"ows Andheri %est Mu&+ai, 00 058' 9H: MA99:R *:9%::'! Madhu Gupta

] ] ] ]

](( App"icant7Appe""ant .Ori( Respondent/

Age 61 years, Occ: Housewife !wa&i !a&arth 'agar, Mu&+ai, 00 05-

Residing at 50 , !heeta" #A$ %ing

Off( )our *unga"ows Andheri %est

1ra2in 3u&ar Gupta

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Age 65 years, Retired

Residing at 1105, 11th f"oor 1ancha2ati 4(H(!( 5td( Off 6ari Road, 0erso2a Andheri .%est/, Mu&+ai, 00 061

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] ] ] ] ] ](( Appe""ant .Ori( Respondent/ ] ] ] ] ] ]((Respondent .Ori( 1etitioner/
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3 WITH IN F.C.A.NO. 144 OF 2013

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1ra2in 3u&ar Gupta 1105, 11th f"oor 1ancha2ati 4(H(!( 5td( Off 6ari Road, 0erso2a Andheri .%est/, Mu&+ai, 00 061 9e&porari"y Residing at 0, ;en<i" A2e, !t( 4"air, '!% =>5?, !ydney, Austra"ia

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Madhu Gupta

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IN THE MATTER BETWEEN!

50 , !heeta" #A$ %ing

!wa&i !a&arth 'agar,

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)our *unga"ows Andheri %est Mu&+ai, 00 050s(

1ra2in 3u&ar Gupta at 1105, 11th f"oor 1ancha2ati 4(H(!( 5td( 6ari Road, 0erso2a Andheri .%est/, Mu&+ai, 00 061

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]((App"icant7Respondent ] ] ] ] ](( Appe""ant .Ori( Respondent/ ] ] ] ] ]((Respondent .Ori( 1etitioner/
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CIVIL APPLICATION NO. 1" OF 2014

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Mr( ;attatray 1( Adar@ar Ad2ocate for Respondent in )4A 'o( 1 of =01- and 4AM 'o( 1-> of =01- and App"icant in 4AM 'o( 16 of =01 (((((
CORAM ! SMT.V.#.TAHILRAMANI AND SHRI. P.N.DESHMU#H$ JJ. DATED ! FEBRUARY 11$ 2014

Heard the "earned counse" for the appe""ant,wife and

the "earned counse" for the respondent,hus+and( *y consent of the parties, the &atter is ta@en up for fina" hearing and disposa"( )or the sa@e of con2enience, hereinafter, the

appe""ant wi"" +e referred to as Cthe wifeC and the respondent

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wi"" +e referred to as Cthe hus+andC(

against the Audg&ent and order dated ==(10(=01= passed in M(D( 1etition 'o( A,-E= of =00E +y the )a&i"y 4ourt 'o(=, *andra, Mu&+ai, where+y her counter,c"ai& for &aintenance

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9his )a&i"y 4ourt Appea" has +een fi"ed +y the wife

JUDGMENT! %PER SMT. V.#.TAHILRAMANI$J.& !

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((((( Mrs( Mruna"ini ;esh&u@h and Ms( ;e2i@a ;esh&u@h a"ong with Mr( Mahesh 5ondhe and Ms( Radha 0ed Ad2ocates i7+ M7s( !anAay Bdeshi and 4o( for Appe""ant in )4A 'o( 1 of =01- and App"icant in 4AM 'o( 1-> of =01- and Respondent in 4AM 'o( 16 of =01

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was dis&issed(

Ad&itted facts in this &atter are that they

ha2e two chi"dren i(e( one son Anindya and one daughter( *oth the chi"dren are &arried and they are sett"ed a+road(

hus+and had fi"ed a petition for di2orce on the ground of crue"ty which ca&e to +e dis&issed( He has not cha""enged the said decision in the petition for di2orce(

Rs(15,0007, per &onth(

9he hus+and contested the counter,

c"ai& +y fi"ing his %ritten !tate&ent( 9he hus+and$s petition

9hereafter, the wife adduced her e2idence c"ai&ing for a

On 1-(E(=00E, the )a&i"y 4ourt eFparte decreed the counter, c"ai& and according"y decree of Audicia" separation was passed

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and the hus+and was directed to pay Rs(=5,0007, per &onth as &aintenance to the wife( 9he hus+and preferred Misc( 4i2i"

App"ication for setting aside eFparte decree passed on 1-(E(=00E( Howe2er, he did not cha""enge the decree of

Audicia" separation and he had on"y prayed for setting aside the order re"ating to the &aintenance( Misc( 4i2i" App"ication was granted on 1?(-(=01=( 9hus, the decree passed on 1-(E(=00E

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decree of Audicia" separation and &aintenance of Rs(15,0007,(

for di2orce was dis&issed on 1-(1(=00? +y the )a&i"y 4ourt(

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counter,c"ai& see@ing Audicia" separation and &aintenance of

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9he wife had fi"ed
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9he

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in re"ation to &aintenance, was set aside +y order dated 1?(-(=01=( 9hereafter, the wife "ed her e2idence and the

e2idence(

8t is we"" sett"ed "aw that a wife who has no sufficient

&aintenance fro& her hus+and who is ha2ing sufficient &eans( 9he +urden "ies on the wife to pro2e that the hus+and has

sufficient &eans(

9he e2idence of the wife and son Anindya

hus+and

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shows that the wife is staying separate since =00> and the has not gi2en any a&ount to her towards

&aintenance(

8t is an ad&itted fact that +oth the parties are As the decree for

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staying separate"y since the year =00>(

Audicia" separation was granted in fa2our of the wife and the decree of Audicia" separation has not +een cha""enged +y the hus+and, on this ground the wife has a right to "i2e separate"y fro& hus+and( 9he hus+and has stated in his e2idence that he is staying in Austra"ia and he is doing part,ti&e wor@ at 5oca" 4o&&unity 4o""ege .'epean 4o&&unity 4o""ege/( He has

refused and neg"ected to &aintain her though he is ha2ing

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per&anent

source

of

inco&e,

can

on"y

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c"ai& and get
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e2idence of her son Anindya and the hus+and adduced his

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further stated that he was teaching three courses +ased on his s@i""s in !a"es and 4o&puters( :ach course is of E "ecturers of =

for the fu"" course( His a2erage &onth"y inco&e post,taF was 00 Austra"ian ;o""ars(

docu&ents to show that the hus+and was a 4(:(O( in G5=%8' 4O'!B59A'46 109( 59;( in Austra"ia 9he said +usiness is

pointed out that one other fir& i(e( Architectura" ;rafting and

address which shows that the hus+and is connected with the said +usiness( 8n order to support the c"ai& that the hus+and is

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connected with +oth the +usinesses, she pointed out that the address of the said two +usinesses is the sa&e as the residentia" address of the hus+and( As far as these docu&ents are concerned, 4ourt( they were not produced +efore the )a&i"y

:2en if the said docu&ents are ta@en into consideration, they do not show the inco&e of the respondent,hus+and( Hence,

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;esign !er2ices a"so carries out +usiness fro& the 2ery sa&e

'o e2idence was "ed in respect to these docu&ents(

conducted fro&

0 ;en<i" A2enue, !t( 4"air, '!% =>5?( !he

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9he "earned counse" for the wife produced so&e

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hours duration each( He is paid 500 Austra"ian ;o""ars post,taF

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these docu&ents wou"d +e of no use to the appe""ant,wife(

ha2e to +e considered 2i<( .1/ whether the hus+and has

capacity to pay &aintenance H and .=/ whether the wife has any source of inco&e to &aintain herse"f H

Austra"ian ;o""ars per &onth(

does not ha2e any per&anent source of inco&e to &aintain

any per&anent source of inco&e and she is una+"e to &aintain

e2idence and e2idence of her son Anindya( 8t is pertinent to note that the wife has not specifica""y p"eaded and stated in her

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e2idence that she is not ha2ing any per&anent source of inco&e and that she is una+"e to &aintain herse"f( 8t is further pertinent to note that she has ad&itted in her cross, eFa&ination in paragraph 5= that near a+out Rs(50 "a@hs ha2e +een deposited in the *an@s as )iFed ;eposits( As per !ection 5E of the :2idence Act, ad&itted facts need not +e pro2ed( :2en otherwise the "earned counse" for the appe""ant,wife has

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herse"f( 8n order to pro2e the sa&e, the wife has adduced her

herse"f( 9he wife is reIuired to pro2e that she is not ha2ing

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the hus+and shows that he was earning an a&ount of

9he wife has to pro2e that she

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9he e2idence of 00
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8n considering the prayer for &aintenance, two issues

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ad&itted that a+out Rs(50 "a@hs is in the na&e of the wife in the *an@( 9he e2idence of the wife c"ear"y shows that the wife

she is getting interest on the said )iFed ;eposits( 8n such case,

the appe""ant,wife cou"d ha2e produced and pro2ed the )iFed

;eposit 4ertificates and rate of interest which she is getting(

4ertificates, therefore, it has not co&e on record that how &uch interest she is getting( wife is a senior citi<en( 8t is an ad&itted fact that the

interest than the other depositors( 8f ?J is he"d to +e the rate

which &eans that she wou"d get Rs(->,5007, per &onth as interest on )iFed ;eposits of Rs(50 "a@hs( 9he wife has stated

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in her cross,eFa&ination at paragraph

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of interest, then the wife wou"d get Rs( ,50,0007, per year

produce the !tate&ents of Accounts of Mutua" )unds standing in her na&e a"one +ut she has not produced the !tate&ents of Accounts of Mutua" )unds( 9his shows that she has a"so &ade in2est&ents in Mutua" )unds in addition to )iFed ;eposits which c"ear"y stand in her na&e +ut she has not produced the sa&e( 8f she wou"d ha2e produced the !tate&ents of Accounts

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Ad&itted"y,

she

has

not

produced

8n such case, she wou"d get &ore

E that she is ready to

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the )iFed ;eposit
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has in2ested Rs(50 "a@hs in the *an@s in )iFed ;eposits and

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of Mutua" )unds, then it wou"d ha2e gone against her, therefore, she has not produced the sa&e( 8n

against the appe""ant,wife and it is reIuired to +e he"d that she

is getting so&e di2idends regu"ar"y fro& the in2est&ents &ade in the Mutua" )unds(

9he wife has ad&itted in her e2idence that she is

staying in !heeta" Apart&ent at Andheri, Mu&+ai( 9he f"at in

out of the &oney put in +y her and her hus+and( 9he hus+and

9he "earned counse" for the respondent,hus+and has stated that the f"at has +een gi2en eFc"usi2e"y to the wife and she is in

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eFc"usi2e possession of the sa&e( 9his fact is ad&itted +y the "earned counse" for the appe""ant,wife( 8n such case, there is no Iuestion of gi2ing rent for acco&&odation to the wife(

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that though the )a&i"y 4ourt had he"d that the wife has to incur &edica" eFpenses, dai"y eFpenses, &aintenance of

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has another f"at which is a"so in Andheri in 1ancha2ati *ui"ding(

9he "earned counse" for the appe""ant,wife su+&itted

!heeta" Apart&ent at Andheri, according to her, was +ought

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circu&stances, an ad2erse inference is reIuired to +e drawn

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society etc( yet, the )a&i"y 4ourt has not awarded any &aintenance to the wife( !he further pointed out that on

@nees and the eFpenses for the said surgery ca&e to a+out Rs(10,-?,0007,( !he has further stated that the f"at in which

the wife is staying is in dire need of repairs and she has

which shows that the f"at needs repairs( 9hus, it was su+&itted that the wife wou"d +e reIuired to incur eFpenses in re"ation to

the &edica" eFpenses for @nee rep"ace&ents are concerned,

after the Audg&ent and decree was passed in the present case( 9he Audg&ent and decree in the present case was passed on

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==(10(=01= and the e2ents &entioned in the docu&ents ha2e occurred after the Audg&ent and decree has +een passed( 8n 2iew of this su+seIuent de2e"op&ents, the Audg&ent passed +y the "earned Dudge of the )a&i"y 4ourt cannot +e fau"ted( !i&i"ar is the situation in respect of the eFpenses for repairs of the f"at(

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the said eFpenses were incurred on -0(1=(=01- which was

the repairs of the f"at a"so( As far as the docu&ents re"ating to

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produced a copy of a "etter of the Architect dated ?(1(=00

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-0(11(=01- the wife was reIuired to undergo surgery for +oth

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8t was contended on +eha"f of the wife that a&ount

was siphoned off +y the hus+and fro& their Aoint account(

that the wife herse"f had not &ade any &ention a+out the sa&e in her e2idence(

9he son Anindya has &ade so&e

reference to such fact, howe2er, no witness fro& the *an@ has

such a&ount fro& the Aoint account(

ti&e and again that the appe""ant wife was and is a ho&e

an ad&itted fact that the wife has Rs(50 "a@hs in *an@ Accounts, o+2ious"y, as the wife was not earning, the said

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a&ount of Rs(50 "a@hs &ust ha2e co&e out of the hus+and$s earning( *esides the a&ount of Rs(50 "a@hs which is deposited in the )iFed ;eposits in the na&e of the wife, it &ay +e stated that the hus+and had deposited Rs(=,00,0007, +y way of interi& &aintenance for the wife( 9he wife was a""owed to

withdraw the said a&ount( !he has deposited the said a&ount in the *an@ as )iFed ;eposits which is ad&itted +y her in her

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&a@er and she has no independent source of inco&e( 8t is a"so

9he "earned counse" for the appe""ant,wife reiterated

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+een eFa&ined to pro2e that the hus+and had siphoned off

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said a&ount was a+out Rs(1?,E5,6 17,( 8t is interesting to note

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cross,eFa&ination in paragraph 5E(

8f rea""y the wife was in

need of &oney for her &aintenance, then definite"y she wou"d ha2e spent the a&ount and wou"d not ha2e in2ested it in )iFed ;eposits in the *an@( 9his shows that the wife is ha2ing

sufficient &oney for her &aintenance( 9he wife is getting at "east an a&ount of Rs(->,5007, per &onth fro& the )iFed

of interest on Rs(=,00,0007, which has +een in2ested +y her which was recei2ed +y her +y way of interi& &aintenance( 8n

interest on the &oney she has in2ested in Mutua" )unds(

addition to this a&ount, she is getting so&e a&ount +y way of A""

is seen that the wife is ha2ing sufficient per&anent source of inco&e to &aintain herse"f(

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su+&itted that the wife is ha2ing sufficient &eans for her sur2i2a" and therefore, she is not entit"ed to get &aintenance( He has p"aced re"iance on the ratio "aid down +y this 4ourt in the case of S'(')*+ A,-.)/ M0/1'*23*4 V5. A,-.)/ R*63,.5')* M0/1'*23*4 reported in 20117"8 M'. L. J. 19(

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these a&ounts are &ore than sufficient for her &aintenance( 8t

9he "earned counse" for the respondent,hus+and

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;eposits(

8n addition, she is getting so&e additiona" a&ount

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8n the said case, this 4ourt o+ser2ed that the wife was earning Rs( 5,0007, per &onth as sa"ary and she has recei2ed Rs(11

her(

9herefore, this a&ount is sufficient to the wife for her

&aintenance( 9his 4ourt o+ser2ed that in such case, the wife is not entit"ed for &aintenance fro& the hus+and(

Rs(->,5007, per &onth as interest( !he has &ore than 50 "a@hs in the +an@( 8n addition, the app"icant$s son is pro2iding &oney

on her(

9hus, the facts in the decision re"ied upon and the

app"y to the facts of the present case(

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opinion that the Dudge of the )a&i"y 4ourt has right"y he"d that the appe""ant,wife is ha2ing sufficient inco&e for her sur2i2a" and she has fai"ed to pro2e that she is entit"ed for any &aintenance( 9hus, we find no &erit in the present Appea"( Appea" is, therefore, dis&issed(

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facts in the present case are Iuite si&i"ar and the ratio wou"d

5oo@ing to the e2idence on record, we are of the

for her &aintenance and other eFpenses( 'o one is dependent

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present case, it is seen that the wife is getting &ore than

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8n the
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"a@hs as +ac@,wages( Her daughters were not dependent on

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1=

8n 2iew of dis&issa" of the )a&i"y 4ourt Appea", 4i2i"

App"ication 'os( 1-> of =01- and 16 of =01 do not sur2i2e and are disposed of as such(

%SHRI. P.N.DESHMU#H$ J.&

kandarkar

%SMT. V.#.TAHILRAMANI$ J.&

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